"(2) In order to justify a finding of racial discrimination, there must first be a finding of discrimination, ie in the present case that Ms Chapman treated Ms Simon less favourably than she treated some other person - see s.1(1)(a) of the 1976 Act. In relation to their paragraph 9 finding - that Ms Chapman had prejudiced the case against Ms Simon - the Industrial Tribunal made no finding that Ms Chapman had treated Ms Hoyle or some other person more favourably. There was therefore no finding of discrimination on which to base a finding of racial discrimination. (3) In order to justify an inference, a Tribunal must first make findings of primary fact from which it is legitimate to draw the inference. If there are no such findings, then there can be no inference: what is done can at best be speculation."
"Racial discrimination may be established as a matter of direct primary fact. For example, if the allegation made by Ms Simon of racially abusive language by the headteacher had been accepted, there would have been such a fact. But that allegation was unanimously rejected by the Tribunal. More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination, is insufficient without facts being found to support that conclusion."
"8 So far as the allegations of race discrimination are concerned, we are required to make findings of primary fact in the face of the evidence before us. The burden of proving facts which are alleged by an applicant lies with that applicant. He or she has to prove those facts on the balance of probabilities. As to whether any discriminatory action shown by the primary facts is taken on racial grounds and is therefore unlawful, the Court of Appeal in King [see above] gave guidance to tribunals as to the correct approach. We remind ourselves that we must look at all the evidence and that the Applicant must show that it is more probable than not that on racial grounds the Respondent treated him less favourably than it treated or would have treated others. Sometimes an applicant will refer to a comparator of another ethnic origin. However, it is permissible for the applicant, in seeking to satisfy the burden of proof, to refer to a hypothetical comparator of another ethnic origin. We must remind ourselves that direct evidence of racial discrimination is rarely available and that evidence will normally be inferences from the primary facts we find. On the basis of those primary facts, we must ask ourselves (a) did the Respondent treat the Applicant less favourably than others, comparing like with like? (b) was there a difference in race? (c) was the difference in treatment on the ground of race? We remind ourselves that if the answer to (a) and (b) above is yes, then it is common sense to look to the Respondent for an explanation. There is no question of shifting the burden of proof but only the Respondent can explain the reason for its actions. If there is no explanation or the explanation is inadequate or unsatisfactory, the Tribunal should be prepared to infer that the treatment was on grounds of race. However, we take further guidance from the decision of the House of Lords in Zafar [see above] in which the guidance given by Neill LJ in King [above] is approved. However, the House of Lords also went on to point out that simply because there may be no adequate explanation, it does not follow as a matter of course that we should find discrimination on account of race. We have to look critically at the respondent's explanation and not supply our own explanation. We note that it is unpalatable to decide that the treatment was on grounds of race in the face of the respondent's sworn evidence to the contrary. We know that race and sex discrimination does exist and that it is improbable that any respondent will admit it. We have to resolve conflicts of evidence by decision. It is not necessary to show that the respondent was ill-intentioned or prejudiced. The question at the end of the day is, has the applicant shown that it was more probable than not that he was a victim of race discrimination?"
"Candidates selected for interview will be notified within three weeks of closing dates. It is regretted that applicants who do not hear further within the three week period, must conclude that their application has not been successful."
"As requested I set out below the reasons the panel are unable to short-list you for the above mentioned post: Failure to demonstrate the following to the panel's satisfaction: Knowledge of National Health and social care policy developments and implications for social services. To be able to produce strategic plans in conjunction with senior management, and in consultation with service users and carers. To be able to initiate a planning strategy that includes an information implementation place, quality standards and monitoring system. Finally I apologise profusely for the delay in replying to your request and trust that this information is helpful to you with any further application."
"Nevertheless and taking those factors into account, we saw no real evidence at all that she made any serious attempt to provide further details as promised by her various questionnaire responses in the fashion that, "
"unimpressed at the [Appellant's] conduct, both by the scant information in response to the questionnaire and also the statistical information required of it by the [Respondent] for the preparation leading to this hearing."
"the only explanation for [Respondent's] treatment in regard to both of his complaints is that he was treated differently on account of his race"
"(11 (ii) ………….In applying the analysis we are required to undertake under King , there is clear evidence Dr Ogunlokun was treated differently than, for example, Mr Ullah. He was not afforded an interview (and thereby suffered a detriment) and there was a clear difference of treatment (see above) in his marking for the short-listing process. It is common ground there is a difference of race. Thus, we are required to consider the Respondent's explanation therefore to see whether, on the balance of probabilities, we are satisfied with that explanation. We are also mindful (see the authorities to which we have referred above) that merely because there is the absence of an explanation it does not follow we must reach the conclusion that we are looking at race discrimination. Likewise, the absence of a satisfactory explanation entitles us to draw inferences that the contrary was the case. For the reasons we have indicated already, we found the Respondent's explanation of the failure to short-list Dr Ogunlokun both inadequate and unsatisfactory. That, even together with its failure to answer satisfactorily the race relations questionnaire or indeed thereafter, leads us, on the balance of probabilities, to the unanimous conclusion that the only explanation for the Applicant's treatment in regard to both of his complaints is that he was treated differently on account of his race. That is race discrimination and we find accordingly."
"In applying the analysis we are required to undertake under King , there is clear evidence Dr Ogunlokun was treated differently than, for example, Mr Ullah. He was not afforded an interview (and thereby suffered a detriment) and there was a clear difference of treatment (see above) in his marking for the short-listing process. It is common ground there is a difference of race. Thus, we are required to consider the Respondent's explanation therefore to see whether, on the balance of probabilities, we are satisfied with that explanation"